R v Shan Shan Xu [No 2]

[2005] NSWSC 70

CITATION:	R v Shan Shan Xu [No 2] [2005] NSWSC 70
HEARING DATE(S):	14/02/05 15/02/05 16/02/05
JUDGMENT DATE :	18 February 2005
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Verdict of not guilty by reason of mental illness; Order for release subject to conditions, including review by Mental Health Review Tribunal (refer para 71).

CATCHWORDS:	Criminal Law - Judge Alone trial - mother accused of murder of 4 year old son - plea not guilty by reason of mental illness - accused no longer in custody - whether should return to custody - order for conditional release after verdict.
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act, 1990
CASES CITED:	M'Naghten (1843) 10 Cl and Fin 200 [8ER 718] R v Line [2004] NSWSC 1148
PARTIES:	Regina Shan Shan Xu
FILE NUMBER(S):	SC 2004/70015
COUNSEL:	P Miller (Crown) Ms D Yehia (Acc)
SOLICITORS:	Ms M Sleeton (DPP) Ms J Harris (LAC)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 18 February 2005

2004/70015 REGINA v Shan Shan XU

JUDGMENT ON VERDICT

1 KIRBY J: Shan Shan Xu stands charged with the murder of her son, Stephen Xu. Stephen died on 31 March 2003 at Meadowbank. He was four and a half years old.

2 Ms Xu has pleaded not guilty by reason of mental illness. She has, with the consent of the Crown, elected to be tried by a Judge sitting without a Jury.

Background.

3 Ms Xu was born on 30 November 1970 in Shanghai, China. At the time of her son's death she was 33 years old. She grew up in China, where she studied accountancy. She has a brother. He is four years younger and remains in China, as does her father. Her mother, however, emigrated to Australia in 1992.

4 In 1995 or thereabouts, Ms Xu married a man who was already living in Australia. She thereafter accompanied her husband to Australia, where she worked as a waitress. Her husband, however, was a gambler. After approximately three years Ms Xu and her husband agreed to separate. They then divorced. Ms Xu moved in with her mother, her only relative in Australia. Her mother rented an apartment in the city.

5 Ms Xu thereafter formed a relationship with a man who worked in the construction industry. She became pregnant. The pregnancy, however, put an end to the relationship. She decided, nonetheless, to keep the child. Stephen was born on 2 October 1998. Ms Xu gave up work in order to look after Stephen.

6 Ms Xu's mother rented space in her apartment to young travellers who would usually stay for a short time. One such traveller, Ms Denise Kiely, provided a statement. She observed Ms Xu on a daily basis, as she interacted with Stephen. It was plain to her that Ms Xu and her mother loved Stephen. She described them as a very close family. She saw nothing which would suggest that Ms Xu would harm Stephen.

7 Stephen was a happy and healthy child. When Ms Xu began a course at TAFE, Stephen was placed in a child care centre. However, she was not happy with the care provided. She withdrew Stephen from the centre. Thereafter, with the help of her mother, she looked after Stephen.

8 In late 2002, Ms Xu's mother made arrangements to take Stephen to China. She wanted him to meet his grandfather. Ms Xu remained behind. It was planned that her mother and Stephen would be away from Australia for approximately five months.

9 Before her mother's departure there were symptoms of mental illness afflicting Ms Xu, although they were not recognised as such. Ms Xu's mother thought that her daughter had become lazy. She appeared sluggish and without energy. She had no enthusiasm.

10 Whilst Stephen was with her grandmother in China, Ms Xu telephoned regularly. She wanted to speak to Stephen. She later provided doctors with a description of her isolation during this period. She felt increasingly sad and withdrawn. She was particularly sensitive to noise. She found it difficult to make decisions, even easy decisions, such as the purchases she should make at the supermarket. She had no energy. She slept more than usual. She rarely left the flat.

11 Ms Xu's mother gave evidence that, having been away for a number of months with Stephen, she received a disturbing telephone call from her daughter. During their conversation her daughter said that she wanted to die.

12 The mother returned to Australia at once with Stephen. She found her daughter utterly lacking in energy. She was "not interested in anything". She did not want to cook, she neglected to bathe or shower, or groom herself. She simply lay in bed all day. She continued to express thoughts of taking her own life. Alarmingly, she made the following comments to her mother in relation to Stephen: (T18)

"Q. Did she say anything about Stephen?
A. That she will want to take him with her so I won't have to look after him for the rest of my life - that me being the grandmother, I can't always look after him because I will get old."

13 Ms Xu's mother took her daughter to see their general practitioner, Dr Silvia Wong. Dr Wong immediately spoke to the Community Mental Health Centre attached to the St Vincent's Hospital. Arrangements were made for the crisis team from that centre to visit Ms Xu that evening, accompanied by an interpreter.

14 Ms Xu repeated to the crisis team that she not only contemplated taking her own life, but that of her son. She reluctantly agreed to accompany them to the St Vincent's Hospital, Caritas Centre, that being an acute psychiatric unit.

15 Ms Xu was admitted to the Caritas Centre that evening. The hospital notes include the following:

"Thoughts of killing herself and her son.
Is insight less - sees nothing wrong with this."

16 Not surprisingly Ms Xu was characterised as a substantial risk to herself and her son. A diagnosis of psychotic depression was made. She was held as an involuntary patient. DOCS was notified, although it is not apparent what, if anything, was done by that Department to safeguard Stephen.

17 Within three days, that is on 24 February 2003, Ms Xu was discharged. She was said to be much brighter, although still with limited insight into her apparent depression. She said that she was happy to continue taking her medication.

18 The crisis team continued to visit Ms Xu at home. She appeared cheerful and denied thoughts of suicide or harm to Stephen. Ms Xu's mother reported to Dr Wong on 27 February 2003 that her daughter was much improved.

19 On 5 March 2002, Ms Xu was seen by the Psychiatric Registrar of the St Vincent's Hospital, Dr Rogoz. Dr Rogoz gave the following evidence concerning that examination: (T28)

"... At that time she was cooperative, pleasant, smiling appropriately, no evidence of agitation in her behaviour. Her speech was normal. She reported her mood being good and there was no evidence of any psychotic symptoms. There was no thought of self harm or suicide. And so my impression was that she had a major depressive episode which was resolving on treatment."

20 Dr Rogoz spoke to members of the crisis team. She and the team assessed Ms Xu as being at "low risk of self harm, suicide or homicide". A management plan was made for Ms Xu. She was to continue with her medication. She should see her general practitioner each week and be examined by the hospital in four weeks time, that is, on 1 April 2003.

21 Ms Xu attended upon her general practitioner the next day. There is the suggestion that her next consultation was cancelled by her doctor, which may or may not be right. However it came about, it is plain that no such consultation took place. Ms Xu did not have the weekly medical supervision which the management plan had contemplated.

22 On 27 March 2003, Ms Xu again presented at the St Vincent's Clinic. Dr Rogoz, however, was not conducting that clinic. The Psychiatric Registrar, who was then seeing patients, recorded that he was unclear why she had presented ahead of schedule. He directed her to continue with the treatment and present to Dr Rogoz on 1 April. Ms Xu returned home. There must be doubt as to whether she was, at that time, taking the medication that had been prescribed.

23 About this time, Ms Xu's mother became ill. She went to stay with a friend at Concord West whilst she recuperated. Ms Xu was therefore alone in the apartment with Stephen, apart from the boarder who came and went.

The Incident.

24 Ms Xu told Dr Nielssen that, on 31 March 2003, she set out from Central Railway Station with Stephen, intending to take him to one of her mother's friends who had two children. She had intended to get off the train at Rhodes station. However, she missed her stop. Instead she was carried to Meadowbank wharf.

25 Ms Xu said that she then decided to remain at Meadowbank. There was a park adjacent to the wharf which was quiet and pleasant. The closed circuit television maintained by the Transport Authority recorded her presence and that of Stephen from about 2.00 pm. They walked back and forth. Stephen played like any normal child of that age.

26 Darkness fell and they remained at the park. At about 6.41 pm the television recorded Ms Xu walking down the ramp at the Meadowbank wharf, holding Stephen's hand. There was no-one else on the wharf. At the end of the ramp she gathered Stephen in her arms and held him for some time. She then disappeared from the end of the wharf, still holding Stephen, as she stepped into the Parramatta River.

27 Ms Xu drifted for some time. She was observed by fishermen at the nearby Meadowbank railway bridge. They thought that she was swimming, as she moved silently through the water.

28 At 7.47 pm, that is, more than an hour later, a Rivercat ferry left the Homebush Bay wharf, on its way to the Meadowbank wharf. Not long after it began that journey, a passenger told a deckhand that there was someone in the water yelling for help. The Master of the vessel stopped the engine. He turned the ferry around. Ultimately, Ms Xu was assisted to climb on board. As she did so, those helping her realised that she was holding onto a child.

29 Attempts were immediately made to revive the child. An ambulance was called. It met the ferry at the Meadowbank wharf. Stephen was taken to Concord Hospital. However, he could not be revived. A doctor at that hospital pronounced his life extinct.

30 Ms Xu, when later interviewed by forensic psychiatrists in connection with this trial, said that when she jumped into the Parramatta River she did not want to kill herself or the child, although she acknowledged to Dr Nielssen that "she was not in control". However, when her apartment was searched by police shortly after the incident, a note was found. It was addressed to her mother, and was in these terms:

"Dear Mum,
We are not coming back home.
Please look after yourself.
Just treat it as if we'd had an accident.
I've really had enough."
Treatment of Ms Xu.

31 Ms Xu was also taken to the Concord Hospital from the Meadowbank wharf. Because of concerns as to her psychiatric state, she was transferred to Rozelle Hospital, where she became a scheduled patient. Ms Xu remained at the Rozelle Hospital for six weeks. The notes record that, upon admission, her affect was blunted. She would not speak readily about her feelings. She did say, however, that she wished to be with her son and not to wake up from sleep.

32 On 4 April 2003, Ms Xu was taken to the Glebe Forensic Unit by a social worker. She was allowed to view her son's body. She was visibly distraught. She found it difficult to leave, stating several times that she wished to remain with him. After a considerable time she was directed to leave.

33 The hospital made a diagnosis of major depressive episode with features of melancholia or anxiety or, alternatively, a major depressive episode with psychotic features. Anti-depressant medication was again prescribed.

34 On 23 May 2003, Ms Xu was transferred to the Caritas Unit of the St Vincent's Hospital. According to the notes she presented as cheerful although still guarded in her interaction with staff and other patients.

35 On 29 May 2003, however, Ms Xu absconded from the ward whilst waiting for her mother to take her out on leave. She was brought back to the unit on 3 June 2003. She was, at that time, agitated and unkempt. She said that she had been staying with friends.

36 The next day Ms Xu was transferred to the Cumberland Hospital. Shortly after her admission on 12 June 2003, Ms Xu was charged with the murder of her son.

37 The hospital notes of the Cumberland Hospital record that Ms Xu had, at that stage, little insight into her role in Stephen's death. She was diagnosed as suffering from a major depressive illness with psychotic features (in remission). Her medication was altered and her mental state then showed marked improvement to the point that the hospital no longer regarded her as being mentally ill.

38 On 4 February 2004, Dr Michael Giuffrida, the Director of the Forensic Unit of the Cumberland Hospital, and Dr Kavanagh, the Registrar, made an assessment of Ms Xu in these terms: (Exhibit H)

"Ms Xu's mental state has fluctuated over the course of her admission. She is no longer Mentally Ill within the meaning of the NSW Mental Health Act, in that she is not frankly psychotic. She is not thought disordered or obviously delusional. On the other hand, she shows a clear impairment of judgement and insight into her illness. She is at best illogical in her reasoning about issues that are critical to her, such as her offence and the charge of murder. She is at times quite irrational in her dealings with staff and unwilling to consider reasonable advice and direction by staff."

39 Both doctors saw the need for continuing supervision and the risk of deterioration in Ms Xu's state in the absence of such supervision.

40 At the time of that assessment, Ms Xu was a voluntary patient. She had been given bail in respect of the charge of murder, which was conditional upon her not seeking to discharge herself from the Bunya Unit of the Cumberland Hospital. The medical staff at the hospital did not, apparently, regard Ms Xu's voluntary status as altogether satisfactory from the viewpoint of treatment. Dr Giuffrida remarked:

"She remains under close observation and her leave privileges have been withheld because of her (at times) difficult behaviour."

41 On 12 February 2004, the DPP made an application to revoke her bail. A Local Court Magistrate, having heard that application, revoked Ms Xu's bail, whereupon she was taken into custody and transferred to the Mulawa Correctional Centre. On 26 February 2004, Ms Xu was transferred to Long Bay where she remained until 31 March 2004, the first anniversary of her son's death. On that day she was again transferred to the Mulawa Correctional Centre.

42 On 19 April 2004, Ms Xu was given bail. She returned to the apartment which she shared with her mother, where she has remained.

43 Ms Xu has, therefore, been living in the community for almost ten months. She has been under the care of a number of doctors. Two of those doctors, Dr Doutney and Dr Parmegiani, gave evidence. They described the course of her treatment and her current mental health.

44 I shall deal with those issues and that evidence shortly. However, it is convenient to first deal with the issue of responsibility and the plea of not guilty by reason of mental illness.

The issue of responsibility.

45 The circumstances in which Stephen died are not in doubt. Given the history and the terms of the note in Ms Xu's handwriting, there can be no doubt as to her intention. The issue is one of responsibility. Was the accused mentally ill at the time of these events, so as not to be responsible in law (s38 Mental Health (Criminal Procedure) Act, 1990)? The onus is upon the accused to establish, as a matter of probability, that at the time of the commission of the offence she was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of her act; or, if she did know, not to know that what she was doing was wrong (M'Naghten's case (1843) 10 Cl and Fin 200 [8ER 718]).

The medical evidence.

46 On the issue of responsibility there can be no doubt. The accused was examined by a forensic psychiatrist retained by her solicitors, Dr Bruce Westmore. She was also examined at the request of the Crown by forensic psychiatrist, Dr Olav Nielssen. Both are highly qualified and experienced practitioners. Both expressed the same view.

47 Dr Westmore, in his report of 20 January 2004, stated that the accumulated evidence strongly supported the mental illness defence, although at that time Ms Xu was reluctant to rely upon such a defence.

48 Dr Nielssen believed that, at the time of these events, Ms Xu was suffering from a major depressive illness with psychotic features, a severe form of depression which is accompanied by a loss of contact with reality. In his report of 24 June 2004 he said this:

"I believe Ms Xu has the defence of mental illness open to her, as a severe depressive illness that is out of proportion to any triggering factors and requires treatment with anti-depressant medication is a disease of the brain, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind.
Ms Xu's illness resulted in a defect of reason in the form of a morbid appraisal of her circumstances and the future that was so severe that she believed that killing her son and committing suicide was a reasonable course of action. I believe that in her morbid state of mind she did not appreciate that her actions in endangering her son's life was morally wrong. She was also unable to reason with composure regarding the alternative courses of action open to her."

49 Dr Nielssen examined Ms Zu again in February this year for the purposes of giving evidence. He reaffirmed his view.

50 I accept the evidence of Doctors Westmore and Nielssen. I find Ms Xu Not Guilty of murder by reason of mental illness.

Current mental state.

51 Upon entry of such a verdict, the Court may do a number of things, as set out in s39 of the Mental Health (Criminal Procedure) Act, 1990. It may order that the person be detained in such place and in such manner as the Court thinks fit, until released by due process of law. Alternatively, the Court may make such orders as it considers appropriate, including an order for the release of the person, with or without conditions.

52 Where a person is detained or released subject to conditions, the jurisdiction of the Mental Health Review Tribunal is enlivened. The person then becomes a forensic patient subject to the supervision of that Tribunal.

53 It must be understood, however, as was recently explained by Simpson J in R v Line [2004] NSWSC 1148, that where conditions are imposed upon the release of a person, they are not imposed by way of punishment. The objective is the protection of human life, including that of the person who is the subject of the order.

54 It therefore becomes necessary to examine Ms Xu's present mental state and her conduct since her release on bail.

55 I assume that the bail given on 19 April 2004 required Ms Xu to present at the Darlinghurst Community Health Centre, which comes within the St Vincent's Hospital Mental Health Service, and to comply with the directions of that centre. Ms Xu attended the centre the day following her release (20 April 2004). The hospital notes record that she had no acute symptoms of depression or psychosis.

56 Ms Xu continued to attend the centre, but was unhappy with aspects of their treatment. Indeed she made a complaint. Having made the complaint, she then attended the Prince of Wales Hospital on 12 August 2004, where she saw Dr Doutney. Dr Doutney is a consultant psychiatrist and the Medical Superintendent of the Prince of Wales Mental Health Service.

57 On 24 August 2004 Ms Xu's mother attended the St Vincent's Hospital. She described matters which gave rise to concern. She and her daughter had been arguing for a number of days. The arguments concerned a phone call which the mother planned to make to China. One gathers that she intended to inform relatives of Stephen's death. In the course of the argument she claimed that her daughter threatened to kill her. It was a verbal exchange. There was nothing physical. The mother moved out of the apartment for a time, staying with friends.

58 The Psychiatric Registrar, members of the crisis team, and the police endeavoured to speak to Ms Xu. They went to her apartment. She was not at home. They spoke to her by telephone. However, she could not be persuaded to return home. An interim Apprehended Violence Order was granted against Ms Xu, on an application of the police on behalf of the mother.

59 However, on 2 September 2004, Ms Xu's mother reported to the hospital that her daughter was "OK" and that she should be allowed to chose her own doctor. Ms Xu, in the meantime, had seen Dr Doutney and was continuing to see him at monthly intervals.

60 Dr Nielssen dealt with this episode in the course of his evidence. The issue was whether it was symptomatic of a relapse of the mental illness or simply a difference between mother and daughter. The mother, in her evidence, acknowledged that, upon reflection, she was, at least in part, at fault. Indeed, she had apologised to her daughter. Dr Nielssen said that he viewed the incident as an understandable conflict between mother and daughter, rather than a relapse. The mother said that she was not in fear of her daughter.

61 In October 2004, Ms Xu also began seeing Dr Parmegiani, psychiatrist. She continued to see him approximately every two weeks, whilst still seeing Dr Doutney each month.

62 Dr Doutney provided a report on 10 February 2005 in which he commented upon Ms Xu's mental state in these terms:

"She does not at present show any signs of depressive or other psychiatric illness. She is always pleasant and cooperative when I see her."

63 Dr Parmegiani's report of 9 February 2005 was in similar terms. He said this:

"Overall my impression is that Ms Xu remains clinically well, and I have no reservations about her ability to reside in the general community."

64 Dr Westmore stated that, after his consultation in December 2004, he saw no evidence of psychotic symptoms in Ms Xu, although there were some continuing symptoms of depression.

65 Dr Nielssen, in evidence, voiced the following opinion concerning his recent examination: (T38)

"Well, at the time of the interview last Wednesday, I didn't find any active symptoms of mental illness in the form of abnormal beliefs, symptoms of psychotic illness such as perceptual disturbances and she did not appear severely depressed so I thought her current state was stable and that is also the opinion of Dr Parmegiani who has seen her more regularly. He has not seen any signs of active mental illness. He said she hasn't missed an appointment."

66 In Dr Nielssen's view, Ms Xu did not present as a risk to herself or others, although she did require long term psychiatric care. He thought it important that she continue for a period of years to see a psychiatrist at regular intervals and take medication. Were she not to do so, she would be at risk of a relapse.

67 The Crown submitted that I should order that Ms Xu be detained. That would enable a thorough assessment by the Mental Health Review Tribunal and her possible release after that review. Counsel for Ms Xu argued that there was no justification for a return to custody. Conditions could be attached to Ms Xu's release which would ensure that she was provided with appropriate supervision and a timely assessment by the Mental Health Review Tribunal.

68 Dr Parmegiani said that, were Ms Xu to return to custody, he would expect a deterioration in her mental state.

69 Ms Xu has, of course, suffered a tragedy. There are, however, many encouraging signs in respect of her recovery. She has begun a course in computers at TAFE. She has undertaken driving lessons in the hope that that may assist in securing employment once this trial has been completed. She believes that she may be able to help others who are afflicted by mental illness. She has lived without incident in the community for almost a year, apart from the incident involving her mother in August 2004. So far as that incident is concerned, I accept the opinion of Dr Nielssen that the argument was a strong difference of opinion in which things were said that were better not said. It was not a relapse into mental illness.

70 In these circumstances, I do not believe it appropriate to return Ms Xu to custody. I therefore make the following orders.

Orders.

71 Shan Shan Xu, under s39 of the Mental Health (Criminal Procedure) Act 1990, I order that you be released from custody, subject to the following conditions:

1. That you accept ongoing treatment from Dr Charles Doutney or such other psychiatrist as may from time to time be approved by the Mental Health Review Tribunal;

2. That you live with your mother, Shu Hua (Sandy) Yu, at 107/398 Pitt Street, Sydney, or any other residence as shall be approved by the Mental Health Review Tribunal;

3. That you accept as your Case Manager such person as may be appointed by Sydney South Eastern Health Services and that you attend upon, or accept home visits from, your Case Manager, the Community Mental Health Service or such other health workers as your Case Manager may nominate and with such regularity as shall be determined from time to time by your Case Manager, and according to such arrangements as shall be determined by your Case Manager as to time and place of such attendance or visits;

4. That you attend upon your treating psychiatrist with such regularity as shall be determined from time to time by your treating psychiatrist, and according to such arrangements as shall be determined by your treating psychiatrist, as to time and place of such attendance;

5. That you accept such medication as shall be prescribed from time to time by your treating psychiatrist;

6. That you undergo such treatment as may be from time to time recommended by your treating psychiatrist, including admission to any hospital or clinic which he or she might recommend;

7. That you submit to examination and review by such forensic psychiatrist not being involved in your care or treatment as the Mental Health Review Tribunal may from time to time appoint, and authorise those treating you to pass on to such forensic psychiatrist all such information as he or she might request from them;

8. That you attend the Mental Health Review Tribunal reviews of your case, pursuant to the Mental Health Act 1990, according to arrangements as notified in advance to you, your Case Manager, and your Solicitor by the Tribunal;

9. That you keep the Registrar of the Tribunal notified in writing of the details of your current residential address and telephone number, and that you notify the Registrar of the Tribunal immediately, in writing, in the event of any plans to change address, and of any change of address and telephone number; and

10. These conditions shall remain in force until such time as the Mental Health Review Tribunal shall approve some other form of treatment and/or supervision, and subject to any order made by the prescribed authority under the Mental Health Act 1990, in which case it is a condition of your release that you comply with all and any such recommendations of the Mental Health Review Tribunal or the terms of any such order.

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